Update: Effective Date Set for Text-to-911 Bounce-Back Rules

Posted on May 28, 2013 by FHH Law

The new requirements relative to text-to-911 bounce-back messages have been published in the Federal Register, which means that they are technically set to become effective on June 28, 2013. As a practical matter, that effective date is meaningful only to the lawyers, since the “bounce-back” obligation won’t have to be implemented by carriers until September 30. But the Federal Register publication does set the dates for seeking reconsideration (June 28) and judicial review (July 29).

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Coming Soon, Universal Text-to-911; Coming Sooner, Bounce-Back Messages

Posted on May 27, 2013 by Cheng-yi Liu

FCC looks to eliminate possibly dangerous confusion over spotty availability of text-to-911 service. 

Text messaging is rapidly becoming the preferred method of communication by smartphone and tablet users. Trillions of texts are sent each year. But many emergency assistance providers – the folks on the receiving end of 911 calls – aren't yet ready to adapt to the trend. Although texting to 911 will be part of the next generation 911 technical standard, emergency dispatch centers are currently able to receive text messages in only a few select areas.

So if you’re in an emergency, and you text 911 about your dilemma, how do you know whether the message was received and help is on the way? The bad news: you don’t. The good news: by September 30, 2013, you will, thanks to new “bounce-back” requirements adopted by the FCC.

The move is part of the on-going effort, by the Commission and the wireless industry, to provide more effective emergency communications services. Last year, in an agreement with the National Emergency Number Association and the Association of Public Safety Communications Officials (APCO), the largest nationwide cell phone carriers -- Verizon, AT&T, Sprint and T-Mobile -- voluntarily committed to make text-to-911 services available by May 2014. 

But just because the Big Four can do it doesn't mean that the smaller carriers will follow suit. Since 911 is a universal number which consumers expect to work everywhere, the FCC has issued a Further Notice of Proposed Rulemaking (FNPRM) looking to develop guidelines for text-to-911 deployment by all carriers. Text-to-911 will significantly improve access to emergency 911 services in a wide range of circumstances. It will be a boon to individuals with hearing or speech disabilities who cannot make voice calls, for instance. It will help in those (ideally) rare situations where a voice call might be dangerous (the burglar is in the house, and you’re hiding). Since text messaging uses the spectrum more efficiently than voice, text-to-911 will also help ease the load on networks otherwise blocked by congestion or outages (earthquakes and tornadoes, for example).  

But universal text-to-911 capability won’t happen overnight.

It takes time and money to equip public safety answering points (PSAPs), where 911 calls are received and help is dispatched. In the meantime, confusion over whether text-to-911 is available at a particular time and place could be dangerous to people in distress who wrongly assume that they have successfully summoned help.

To help prevent such confusion, the FCC has decided to require that “bounce-back” messages be sent to callers where text-to-911 is not available. In other words, if your message can’t be delivered to or read by the PSAP, you’ll at least be notified that your text message didn’t make it, and you need to try to place a voice call if you can. (Note that the FCC advises that calling 911 for emergency assistance is still preferable to texting in most circumstances.)

The new requirement, scheduled to kick in by the end of September, includes a number of regulatory parameters:

Message Content: The R&O does not mandate specific wording for bounce-back messages, but they must convey at least two critical pieces of information: (1) text-to-911 is not available; and (2) the consumer should try to contact 911 using another means. The FCC provides the following example: “There is no text-to-911 service available. Make a voice call to 911 or use another means to contact emergency services.”

Interconnected Text Messaging Services:  The bounce-back requirement applies to all “interconnected text messaging services”, not just wireless cell phone carriers. The universe of “interconnected text messaging services” includes all services that “enable consumers to send text messages to and receive text messages from all or substantially all text-capable U.S. telephone numbers, including through the use of applications downloaded or otherwise installed on mobile phones.” In another words, if a service allows texting to any phone number, it must provide bounce-back. (On the other hand, applications which support only limited communication with a defined set of users of compatible applications, and not with substantially all text-capable telephone numbers, are excluded from the requirement.) Interconnected text applications which simply transmit and receive text messages over a wireless carrier’s SMS network (as opposed to routing texts through servers using internet-protocol transmission) can comply with the requirement by repeating the bounce-back messages sent by the wireless carriers they use.

NOTE: While all interconnected text providers are required to implement bounce-back, the FCC has not yet decided whether non-carrier text messaging providers (particularly those not capable of handling “short codes” like the three-digit “911”) will eventually be required to deliver text messages sent to “911”. (This question is out for comment in the FNPRM). Such providers may end up subject to a permanent bounce-back requirement. The R&O also provides an exception to the bounce-back requirement for legacy devices which are incapable of both sending text messages to three-digit short codes and being upgraded to do so. (Luddites who still think that phones are only for talking beware)

Roaming and Non-Initialized Handsets: Bounce-back messages will be required when a subscriber is roaming, but the message will be provided by the carrier picking up the cellphone signal, not the subscriber’s home carrier. In contrast, even though non-service-initialized handsets (those not subscribed to any service) are sometimes distributed for emergency calling – since carriers must accept 911 voice calls from any handset – wireless carriers will not be expected to provide bounce-back messages to non-service initialized handsets, because sending or receiving texts normally requires that a service plan be in effect.

Temporary Suspension Mechanism: What happens if a carrier and PSAP both support text-to-911, but the PSAP is temporarily unable to receive texts? For example, a PSAP could be overloaded and unable to respond to 911 texts promptly. The R&O requires covered entities to provide a mechanism for PSAPs to request temporary suspension of text-to-911 capability for any reason. As long as a PSAP avails itself of a temporary suspension mechanism, text providers must provide bounce-back messages for 911 texts in the affected area. The obvious questions: what mechanism will be mandated for PSAPs to notify carriers and how quickly will carriers be able to implement bounce-back? Some kind of automated system will be needed to avoid a time gap when callers won’t know that their text won’t go through.

Finally, the FCC declined to offer consumers an opportunity to test the bounce-back system by sending test text-to-911 messages. The chances are too great that some test messages would get through to PSAPs and flood their systems. The R&O specifically encourages consumer education efforts to discourage consumers from sending text messages to 911 in non-emergency situations.

Since we at CommLawBlog take our public education efforts seriously, we urge everyone to refrain from sending text messages to 911 just to check whether a bounce-back message will be provided (or for any other non-emergency purpose).

The requirements adopted in the R&O will take effect 30 days after publication in the Federal Register. (Check back here for updates on that front.) 

Interestingly, more than one-third of the substantive portion of the R&O is devoted to a deep-in-the-legislative-weeds explanation of why the FCC has the authority to impose the bounce-back requirement. This seemingly defensive posture is presumably a response to claims by CTIA-The Wireless Association® that the FCC lacks the necessary authority. Whether that issue will eventually be put to the courts for resolution remains to be seen.
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Update: PSAP Do-Not-Call Registry Now Effective

Posted on March 26, 2013 by FHH Law

Compliance deadline still up in the air pending finalization of operational details

Late last year we reported on the FCC’s adoption of new rules establishing a “do-not-call” registry for Public Safety Answering Points (PSAP’s). PSAP’s, of course, are places where your 911 is answered; the phones there are associated with conventional 10-digit telephone numbers which are accessed when you dial 911 for emergency assistance. The new registry is part of a Congressionally-mandated system intended to prevent automatically-generated marketing calls – the dreaded “robocalls” – from being made to PSAP numbers.

As noted in our earlier post, noncommercial TV and radio stations which use automatic dialing equipment in connection with their fund-raising activities will need to be careful to comply with the new rules. Historically, charitable and political organizations have been allowed to call numbers on the FTC’s “Do Not Call” list because their calls are deemed to be noncommercial and, thus, entitled to greater First Amendment protection. But the FCC’s new PSAP Do-Not-Call regime does not include any such exemption. Since it does impose very serious penalties for violations, attention should be paid by anyone using automatic dialing equipment.

While the PSAP Do-Not-Call rules were adopted by the Commission last October, they did not become effective immediately. That’s because some aspects of those rules needed first to be run through the Paperwork Reduction Act drill at the Office of Management and Budget (OMB). According to a notice published in the Federal Register, however, OMB has now signed off on the rules (principally, Section 64.1202). As a result, they have become effective as of March 26, 2013.

But just because the underlying rules are now effective does not mean that the PSAP Do-Not-Call registry is yet up and running. In its Federal Register notice, the Commission advises that, “[o]nce the operational details of the PSAP Do-Not-Call Registry have been finalized”, the Commission will be issuing a public notice alerting affected entities of the date by which compliance must begin. Check back here for updates.

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FCC Bars Non-Emergency Robocalls to PSAP Numbers

Posted on December 10, 2012 by Peter Tannenwald

New rules impose new obligations, hefty potential penalties, on politicians and non-profits (including NCE broadcasters) who use automatic phone dialing gear for public outreach.

Unwanted marketing telephone calls are merely annoying for most of us, but in some cases they’re actually dangerous. A marketing call that goes to a number in a 911 service center can block capacity needed for an emergency call – basically, it ties up a line that could and should otherwise be open for real emergency calls, not commercial come-ons or requests for contributions – and the results can be disastrous. 

Simply blocking “911” from automatic dialing equipment won’t do the trick. That’s because the well-known “911” is just an expedient device making it easy for the public to reach help in case of an emergency. In fact, when you dial “911,” your call is directed to a conventional 10-digit phone number at a Public Safety Answering Point, or “PSAP”. The full 10-digit numbers associated with PSAP’s aren’t generally publicized, but that makes no difference to automatic equipment that initiates marketing calls. That equipment simply dials random or sequential numbers; the odds are that such calls will hit some PSAP numbers sooner or later.

The FCC has now adopted rules establishing a new and separate “do-not-call” registry designed specifically to protect PSAP numbers from non-emergency calls. Why? Because Congress told them to do it in the Middle Class Tax Relief and Job Creation Act of 2012 – the same sweeping law that brought us, among other things, the reverse and forward auctions aimed at TV spectrum repacking. The new rules apply to both voice and text messaging calls to PSAP numbers. Congress wasn’t fooling around, and neither is the FCC. The statute mandates fines of at least $100,000 and up to $1 million per call for automatically dialed calls (“robocalls”) directed to PSAP numbers. Telemarketers must check the FCC’s database at least once every 31 days.

We hope that most, if not all, of you are familiar with the “Do Not Call” list created several years ago by the FCC and Federal Trade Commission (FTC). You can put your home number on the list at www.donotcall.gov (some 209 million numbers have been registered). Telemarketers (at least those who observe the law) are not allowed to call numbers on that list.

But the FTC’s “Do Not Call” list doesn’t stop all uninvited – and possibly unwanted – calls.

The FTC’s system has some big exceptions. In particular, charitable and political organizations are allowed to call numbers on the “Do Not Call” list because their calls are deemed to be noncommercial and, thus, entitled to greater First Amendment protection. The result, as most of us experienced first-hand during the most recent national election, can be a near-constant stream of unwanted calls asking our opinions about candidates and/or issues or importuning us to vote one way or the other or contribute money.

Which brings us to the big catch in the FCC’s “PSAP Do Not Call” list. Since any call – whether it’s commercial or noncommercial – that blocks an emergency call can have serious consequences, the FCC’s new rules apply to charitable and political organizations as well as commercial telemarketers. That means that the non-profit and political worlds will now have to check the PSAP do-not-call registry before they fire up their robocallers. 

Having to deal with the FCC’s “PSAP Do Not Call” list will require some adjustments for charitable and political organizations. They’ll probably have to pay a fee to access the PSAP list, but at least the FCC’s PSAP list will be a lot smaller, and presumably less expensive to deal with, than the FTC’s more general 209-million number “Do Not Call” list. But more importantly, organizations that have previously not had to worry about programming their auto-dialers to avoid certain numbers are going to have to learn how to comply. 

Presumably robocalls to lists of an organization’s own members will be permitted, since those lists should not have any PSAP numbers on them. But any calling organization that strays away from numbers it is absolutely certain are not PSAP numbers will be taking a risk and will be subject to major league sanctions if it guesses wrong. There won’t be any “safe harbor” for organizations that try to avoid PSAP numbers and fail. 

Broadcasters who operate noncommercial radio and TV stations and use automatic dialing systems to initiate fund-raising calls should take notice. If the list of numbers dialed is not limited to known contributors, such stations will have to check the PSAP Do Not Call list every month to make sure that no PSAP numbers are dialed. And even if such stations think their lists are appropriately limited, they may want to check the official list anyway – with potential penalties running into six or seven figures for a single violation, monthly checking against the FCC’s list seems a small price to pay for insurance.

Of course, PSAPs are also going to have to participate. Each will be expected to designate a representative who will be the only person authorized to add numbers to, or delete numbers from, the FCC’s list. Those representatives will be responsible for updating their respective PSAP’s numbers on the list once a year. The FCC’s PSAP Do Not Call list will be kept highly secure and confidential, so don’t get any ideas that you may be able to find out the plain number of your local PSAP.

There is one exception to the new rules. Autodialers may be used to call PSAP numbers as part of emergency alert systems. In other words, the proposed rules won’t stop an emergency center from disseminating information to PSAP’s using autodialers.

Because the new rules require the FCC to gather information, they must be approved by OMB before they can go into effect. The effective date will be announced by further order. Check back here for updates on that front.
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Multiline Telephone Systems and 911 Caller Location - Room for Improvement?

Posted on May 29, 2012 by Peter Tannenwald

At Congress’s direction, FCC explores feasibility of more precise caller-location capability for 911 calls from MLTSs.

When you make an emergency call to 911, it’s helpful – and often crucial – for the person on the receiving end to be able to figure out where the call is coming from, particularly if you the caller can’t speak or aren’t familiar with your surroundings.  The receiving operator, stationed at a Public Safety Answering Point (PSAP), generally sees both the number from which the incoming call is made and the address associated with that number in a database available to the PSAP.  This occurs through the magic of Automatic Number Identification, similar to the Caller ID system with which we’re all familiar.  Even cellphones must report their location to the PSAP, meeting FCC-prescribed accuracy standards.

But if the 911 call is made from a phone system that operates through multiple extensions (including Centrex, VoIP, PBX, hybrid, and key systems) – systems referred to as Multi-Line Telephone Systems (MLTSs) – the magic may not work.  MLTSs, used by businesses and institutions, usually use shared outgoing trunks that may not even have a conventional phone number and are tied only to the location of the central phone system and not the location of the calling extension.  So when a 911 call comes in from an MLTS, the PSAP must hope that the caller can report his/her location and callback number.  Without input from the caller, the PSAP operator may know only the general location of the business or institution, but not the particular room, floor, or even building from which the call is coming.

It doesn’t do a lot of good to send an ambulance to a university campus if you don’t know where on the campus to look for the patient.

This is not a new problem.  Historically, the Commission has been inclined to buck the MLTS  problem to state and local governments, which the FCC felt to be “in a better position to devise rules for their jurisdictions”.  But Congress had different ideas.

As part of the sweeping Middle Class Tax Relief and Job Creation Act signed into law in February, Congress enacted the Next Generation 911 Advancement Act of 2012.  That provision directed the FCC to take a look at the feasibility of requiring MLTS manufacturers to include

within all [MLTS] systems manufactured or sold after a date certain, to be determined by the Commission, one or more mechanisms to provide a sufficiently precise indication of a 9-1-1 caller’s location, while avoiding the imposition of undue burdens on MLTS manufacturers, providers, and operators.

The new law also required the FCC to seek comment on model legislation drafted by the National Emergency Number Association (NENA).  (The full title of that model legislation is “Technical Requirements Document On Model Legislation E9-1-1 for Multiline Telephone Systems.”)

The FCC has dutifully responded with a public notice requesting comment on both the questions posed by Congress.

So far, the inquiry as framed by Congress in the Act and the FCC in its public notice is directed exclusively to newly manufactured MLTSs.  There is no suggestion that existing systems should be retrofitted.  Nevertheless, large businesses and institutions using MLTSs – universities providing phone service to dormitories spread out across a wide campus, as an example – should probably consider how to react if the FCC were to adopt regulations, even if those regs are prospective-only.  The adoption of such standards may encourage such entities to accelerate the replacement of their MLTSs.  Why?  To avoid any possible negligence claim if a person somewhere on the premises of the business or institution were to call 911 but not be locatable in time by first responders because of the technical shortcomings of the older MLTS

The FCC has set deadlines for responses to the public notice: July 5, 2012 for comments, August 6, 2012 for replies.
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